The opinion of the court was delivered by: Allen Sharp, Chief Judge.
The double jeopardy clause of the Fifth Amendment of the
Constitution of the United States protects against a second
prosecution for the same offense after acquittal.
In this case the original indictment was filed on July 7, 1983
and the full indictment is marked Appendix A *fn* and is attached
hereto and incorporated herein.
On June 7, 1985 a superseding indictment was filed in this case
in five counts charging only Benjamin Legon Crumpler and is
attached as Appendix B.*fn* (It was conceded in open court by
counsel for Crumpler that Counts IV and V of the superseding
indictment filed on June 7, 1985 in this case were not subject to
dismissal on double jeopardy grounds.)
The defendant, Benjamin Legon Crumpler, was also charged in an
indictment filed in the Central District of Florida at Tampa on
July 26, 1984 and is attached as Appendix C.*fn* There was a
superseding indictment to correct only typographical errors in
Tampa of which this court is familiar and that indictment is
attached hereto, marked Appendix D,*fn* for purposes of clarity.
This court held an extensive evidentiary hearing in this case
at the explicit request of the defendant, which hearing was held
on February 10, 11, 12 and 13, 1986, and a
full and complete transcript of the same has been prepared and
filed totaling 681 pages, which transcript has been carefully
examined by the court and has been available to both counsel for
the government and counsel for the defendant. In addition to
which this court, at the express request of defense counsel,
heard final oral arguments on the 25th day of April, 1986, which
oral arguments lasted approximately one and one-half hours.
The salient fact in this case that creates the double jeopardy
argument of the defendant is this defendant's acquittal of the
superseding indictment in Florida on May 21, 1985. He now argues
here that the double jeopardy clause prohibits the prosecution of
Counts I, II and III of the superseding indictment filed in this
A facial examination of the indictment upon which this
defendant was acquitted in Florida and the indictment upon which
he is currently charged in this district fails to reflect a
double jeopardy preclusion.
In spite of this court's repeated requests and admonition both
the defendant Crumpler and the United States of America, for
reasons best known to each of them, declined to put before this
court a transcript of the evidence in the case tried in Tampa,
Florida. It is this court's belief that such failure must be
primarily charged to the defendant since the defendant had the
burden of proof on the double jeopardy issue in the hearing
before this court. Nonetheless its absence presents serious
problems to the proper disposition of this double jeopardy issue
at this time.
Given this record with its apparent deficiencies this court
must attempt to sort through the facts presented to determine
whether in fact the present prosecution is for the same offense
for which this defendant was acquitted in Tampa, Florida. The
difficulty inheres in the nature of the offense and not in any
conceptual problems with the double jeopardy clause. The
application of the double jeopardy clause is clear and the kind
of conceptual problems that are reflected most recently in United
States v. Jefferson, 782 F.2d 697, (7th Cir. 1986) are not here
present. The problem inheres in the factual nature of conspiracy
and continuing criminal enterprise offenses. The court must make
an extensive dissection of the factual record in this case before
proceeding to the necessary conclusion under the Fifth Amendment
of the Constitution of the United States.
Defendant was earlier charged in an indictment by the Southern
District of Indiana in the mid-seventies. He fled the country and
remained a fugitive until his arrest June 1, 1984.
On July 7, 1983, a United States Grand Jury, sitting in the
Northern District of Indiana returned an indictment (hereinafter
Indiana Indictment) against Benjamin Legon Crumpler (hereafter
defendant). Forty other defendants were indicted as well.*fn1
Defendant was charged in Count Three with a violation of
21 U.S.C. § 952(a), 963, conspiring to import marijuana and cocaine
into the United States, and in Count Four with a violation of
21 U.S.C. § 841, 846, conspiring to distribute and possess with the
intent to distribute marijuana and cocaine. The dates on the
original Indiana indictment read as follows: "Beginning during
the early summer of 1977, the exact date being unknown to the
Grand Jury, and continuing thereafter up to or about January 20,
1983, in the Northern District of Indiana and elsewhere." A
superseding indictment was returned against the defendant on June
7, 1985, charging him in five counts: Count 1 charges him with a
violation of 21 U.S.C. § 848, operating a Continuing Criminal
Enterprise (hereafter CCE); Count 2 with a violation of 21 U.S.C. § 952(a),
963; Count 3 with a violation of
21 U.S.C. § 841(a)(1), 846; Count 4 with a violation of 21 U.S.C. § 843(b)
and 18 U.S.C. § 2; Count 5 with a violation of
18 U.S.C. § 1952, 2. The dates alleged in the superseding
indictment read as follows: "From in or about March, 1978, and
continuing thereafter up to and including in or about January,
1981, the exact dates being unknown to the Grand Jury, in the
Northern District of Indiana and elsewhere." On June 11, 1985
defendant was arraigned on the superseding indictment and pled
not guilty to all counts.
The defendant had also been indicted on July 26, 1984 by the
Middle District of Florida (hereafter Tampa indictment) wherein
he was charged with a violation of 21 U.S.C. § 848, CCE, as well
as 21 U.S.C. § 841(a)(1), 846, 952, 963 and 18 U.S.C. § 2.
Defendant was acquitted of all charges there on May 21, 1985. The
time frame in the Tampa indictment read as follows: "On or
beginning in or about the month of February, 1982, and continuing
thereafter up to and including August, 1983, in the Middle
District of Florida, and in diverse other districts," this
defendant and others did engage in a CCE.
The defendant challenges the charges in the Indiana indictment
alleged in Counts 1, 2, and 3 on the basis of double jeopardy.
Defendant does not here contend that Counts 4 and 5 are impacted
by the court's ruling on his Motion to Dismiss as Barred by
This court held an evidentiary hearing on defendants' Motion to
Dismiss. This court must decide this issue based solely on the
record before it which includes all pleadings, affidavits, and
the evidence adduced during that evidentiary hearing. This court
does not have before it a copy of the transcript of the Tampa
trial since neither side deemed it important enough to their
case. Suffice it to say, that transcript is not before this court
for the determination of the issue of double jeopardy.
At the evidentiary hearing, the defendant testified at great
length on his own behalf and he called Jerome Frese, the former
Chief Assistant United States Attorney involved with the Indiana
indictment and prosecution in support of his motion. In
opposition to the motion the government presented the following
witnesses: Delbert Woodburn and Ernest S. Jacobsen, Chief
Investigators from the Tampa indictment; William Tipping, Shelly
White, George Anthony (Tony) Hicks (hereafter Tony Hicks) and
Charles Kehm, all named as co-conspirators from the Indiana
indictment. The parties have also entered into several
It is the defendant's contention that all of his illegal
smuggling activities from 1977 to 1983 was part of one overall
scheme, a single overreaching conspiracy to smuggle and
distribute drugs in the United States. The defendant testified to
his massive participation and involvement in the crimes charged
in the Indiana and Tampa indictments. However, he claims that the
government was not aware of all of his activities. He contends
that his organization and its overall plan to distribute and
smuggle drugs to the United States continued in substantially the
same form the entire time from 1977-1983 but for the shifting
cast of players (the individuals participating in the activities)
The following is a more specific summary of the facts before
The defendant testified that he was involved in 25-30 overt
acts giving rise to the charges in the Indiana indictment and in
10 overt acts giving rise to the charges in the Tampa indictment.
At different times under different agreements, with different
objectives became involved with and associated with the following
various individuals and their organizations for smuggling
purposes: John Sharp, John Eddie, Thomas Fife, Ronald Markowski,
John Arnold, Frank Brady, Stafford Morrison, Bill Baron, Charles
Kehm, Norman Williams, and Francisco (Paco) Riveroll.
In March of 1978, Defendant was approached by a Hiram Aaron
regarding an airplane for hire. Aaron introduced defendant to
Julio Guell, a mechanic operating out of Miami, Florida, who then
introduced defendant to Ronald Markowski (hereinafter Markowski).
Markowski agreed to serve as a pilot for the defendant in a
smuggling venture of 1200 pounds of Colombian marijuana.
Markowski also introduced defendant to Charles Smith, another
pilot. Other individuals involved in the venture were: John
Arnold, Thomas Fife, John Eddie, and Charles Smith. This incident
comprised the facts alleged in the first overt act of the Indiana
indictment. The aircraft used was the Beach D18. Markowski then
developed his own organization and joined forces with the
defendant as a partner. The two entered into a partnership
agreement to smuggle Columbian marijuana into the United States.
Markowski then introduced the defendant to Bill Baron
(hereinafter Baron) and Baron's organization joined in with
Markowski and the defendant in the fall of 1978. In 1979 Baron
and the defendant had a falling out after a smuggling venture in
which $500,000 came up missing and they quit their partnership.
However, while smuggling together, Baron, Markowski, and
defendant, their objective was to smuggle Colombian marijuana
into the United States through the Bahamas. During their
smuggling ventures, the three of these individuals were involved
with bribing Bahamian officials through a Nassau Attorney, Nigel
Bowe. The bribery was to secure bond and dismissal of charges
against individuals arrested in connection with drug smuggling,
release of boats or aircraft confiscated, and to secure passage
through the Bahamian area during the smuggling operations (i.e.
the arrest of several persons at Green Cay, Bahamas, involving a
boatload of marijuana). The bribery also was to secure the use of
airstrips for refueling purposes.
The defendant testified that his role during his partnership
with Baron was to secure the marijuana in Colombia and ship it to
Baron for the offloading.
After Baron and defendant ended their partnership, Markowski
and defendant became partners and they formed a bogus company,
named Marlowe Internation, (for Terry Lowe, the defendant's alias
at the time, and Ronald Markowski) with the aid of Florida
Attorney Steven Greenburg. The bogus company had a fictitious
president named Mitch Aspra. George Anthony (Tony) Hicks
(hereinafter Hicks), an individual who worked with the defendant
during this time period signed the legal documents as president,
using the name, Mitch Aspra. The Company was then used to
purchase an airplane for smuggling purposes, and a bogus lease
was made to non-existent individuals, in order to reclaim the
aircraft in the event it was ever confiscated by the authorities.
The sole purpose of the Markowski and defendant partnership was
to smuggle Colombian marijuana into the United States. Other key
participants with Markowski and defendant included: Tony Hicks,
Steven Greenburg, John Sharp, Charles Kehm, Bill Tipping, Bob
LeRoy, Charles Rewis, and Danny Bryant. Defendant testified that
he organized, supervised and managed the obtaining of the
marijuana, securing the landing, the landing site in Colombia and
distributing the marijuana in the states to the salesmen.
Defendant was introduced to Stafford Morrison, another smuggler
with an organization, in September of 1980, and began a
partnership with him. Morrison and the defendant planned a
smuggling venture of 18,000 pounds of marijuana from Colombia on
a trawler named the Adventurer. Most of the proceeds from this
venture ended up in the hands of law enforcement officers during
any incident with a rental car in January 1981, which caused the
eventual end of the Morrison-defendant partnership.
Markowski had come back in September 1980, and planned another
trip with defendant involving Morrison (who Markowski said he did
not trust) to smuggle 1800 pounds of marijuana. Markowski and
defendant had another falling out which ended their partnership.
The Colombian sources which defendant utilized during all of
these smuggling ventures were Moises and Danielle Andrews,
predominately as well as Carlos Alarte, Marcos Alarte and Roberto
Peinado. The purpose of each of these ventures was to smuggle
marijuana from Colombia through the Bahamas into the United
States. The locations used during these ventures varied at times
and included: Cat Island, Samson Cay, Caicos Island, Great Exuma,
Ben Hill County, Georgia, Cat Cay, Fort Lauderdale, Florida,
Martin County, Florida, Colombia, South America, Bahamas, Ft.
Myers, Florida, Immokalee, Florida, Green Cay, Island of Bimini,
Lake Okeechobee, Florida, Long Cay, and Andros Island.
The vehicles used by the defendant and his co-conspirators from
March 1978 through January 1981 included: Aztec aircraft 808P;
Rio Grande-freighter; and several cigarette boats; Coral
Star-fishing vessel (originally named the Peola); Cessna 310;
Cessna 402; Bell Jet Ranger Helicopter; Beach Baron Piper Aztec;
Hairy Cary, 32 foot carrier; Adventurer, trawler (later renamed
the Grande Celeste), 38 foot scarab boat; Dolly Dimple, 36 foot
Defendant then testified to about 6 smuggling ventures which he
claims were unknown to the government and through which he
attempts to establish the overlap between the involvement of the
co-conspirators in the Indiana indictment with the
co-conspirators of the Tampa indictment.
Defendant met Norman Williams in a social setting in 1979. Then
on Christmas Day in 1980, a boat smuggling Jamaican marijuana
owned by Norman Williams became stranded near Samson Cay in the
Bahamas. Defendant responded to a stress call from the boat and
decided to assist them in finding safety and in unloading the
marijuana. This incident later became referred to as the "chicken
coop" incident. The marijuana had been stored in a chicken coop
and subsequently stolen by local inhabitants. The smuggler lost
most of the marijuana. After this incident, Williams and
defendant became smuggling partners. Morrison, Williams and
defendant engaged in smuggling activities together for a short
period of time before Morrison quit smuggling with the defendant
It was in the early part of 1981 when defendant went to
California and met one San Francisco Bob in an effort to make
arrangements for new smuggling ventures.
While smuggling with Williams, defendant met Rico Browning, Ray
& Liso (L/N/U), Ricou DeShaw, and Dickey Lynn. Dickey Lynn
introducted defendant to Francisco (Paco) Riveroll and Buddy
Ellis (the core participants in the Tampa indictment)
in June of 1982. Riveroll, Williams, Lynn and defendant began a
partnership forming the bases for the Tampa indictment and
started smuggling large quantities of cocaine from Colombia to
the United States, Riveroll, a Mexican national, had strong
connections with the Ochoa family in Colombia. Defendant's role
was to supervise, manage and organize his airplanes and pilots to
pick up the cocaine in Colombia and airdrop it at designated
locations to be smuggled into the United States.
There were several attempts, both successful and unsuccessful,
which involved the smuggling of Colombian cocaine, and Jamaican
marijuana, from their respective locations, which involved
various agreements, for various smuggling ventures, at various
times. Other individuals conspiring with defendant during these
smuggling ventures and serving in various capacities from
February 1982 through August of 1983 were: Dickey Lynn, Norman
Williams, Francisco (Paco) Riveroll, Joe Resch, Ricou DeShaw,
Russ Morris, Jimmie Boyd, Fred Jenner, Parker Priest, Walter
Moyihan, Richard Kniffen, Wanda Kniffen, Jack Kartee, Kevin
Seehan, Buddy Ellis, Claude Denise and Richard Knauer.
The vehicles used during the smuggling ventures from February
1982 through August 1983 were: 26 foot Ramoni boat; 30 foot
Island Hopper; Westwind, a trawler with secret compartments;
several speed boats; Cessna 182; Aztec, N550US; Cessna 206; PBy
plane and two new aircraft.
The locations used during this time period included: Mongego
Bay, Jamaica; Florida Keys; South Miami, Florida, Bance,
Colombia, Dade County, Florida; Ft. Myers, Florida; and Cancun,
The objective of the conspirators involved with the Tampa
indictment was the smuggling of Colombian cocaine and Jamaican
marijuana into the United States. The main sources of these drugs
were Francisco (Paco) Riveroll and the Ochoa family. The
conspiracy in the Tampa indictment and the smuggling ventures
involved therein did not depend on the bribery of Bahamian
officials since the Bahamas were used only infrequently and the
conspirators had made the conscious decision to smuggle cocaine
predominately instead of marijuana since it was more profitable
and was easier to smuggle. The events of smuggling between
February 1982 and August 1983 were carried out by airdropping.
Further testimony included defendant's admission that guns
(i.e. Mach 10) were used during the smuggling ventures. He
further testified that he had (in rough estimate) grossed about
25 million dollars, which included the successful importation of
approximately 150,000 pounds of marijuana and 1100 kilos of
cocaine into the United States.
The Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969), has set forth succinctly the
three separate constitutional protects guaranteed by the Fifth
Amendment of the Constitution against double jeopardy. The Court
held those three protections to be (1) against a second
prosecution for the same offense after acquittal, (2) against a
second prosecution for the same offense after conviction, and (3)
against multiple punishments for the same offense. North Carolina
v. Pearce, supra at 717, 89 S.Ct. 2076. See also, Poland v.
Arizona, ___ U.S. ___, 106 S.Ct. 1749, ___ L.Ed.2d ___ (1986).
Where successive prosecutions are at stake, the guarantee
serves a "constitutional policy of finality for the defendant's
benefit," Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 at
2225, 53 L.Ed.2d 187 (1977) citing United States v. Jorn,
400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). That
policy protects the accused from attempts to relitigate the facts
underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436,
90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Brown v. Ohio, supra 97
S.Ct. at 2225. The Brown Court further stated at 432 U.S. 165, 97
Because it was designed originally to embody the
protection of the common-law
pleas of former jeopardy, see United States v.
Wilson, 420 U.S. 332, 339-40, 95 S.Ct. 1013,
1019-1020, 43 L.Ed.2d 232 (1975, the Fifth Amendment
double jeopardy guarantee serves principally as a
restraint on courts and prosecutors. The legislature
remains free under the Double Jeopardy Clause to
define crimes and fix punishments; but once the
legislature has acted courts may not impose more than
one punishment for ...